According to Netanel, one often-overlooked aspect of the opinion is that the Court explicitly identified fair use as an essential “First Amendment accommodation” that cannot be disturbed if copyright law is to survive First Amendment scrutiny. In the process, the Court may have poked a hole in the already shaky constitutional justifications for anti-user sections of copyright law.

Congress looks poised to create a new legal shield for mobile phone unlocking, making it clear that people who switch wireless carriers won't face civil suits or criminal penalties under the Digital Millennium Copyright Act. That legal protection was taken away by a ruling from the Librarian of Congress last October. In a hearing tomorrow morning, a subcommittee of the U.S. House Judiciary Committee will hear from witnesses about a bill to bring it back - at least temporarily. It's a no-brainer that people should be able to use the phones they own on the networks of their choice, as everyone from the wireless carriers to consumer advocates to the White House agrees.

A new bill introduced in Congress today aims to resolve the restrictions that complicate phone unlocking, and it's doing it the right way. While other proposals would apply temporary "bandaid" fixes that fail to address the underlying problems behind the restrictions, this bi-partisan proposal from Representatives Zoe Lofgren, Thomas Massie, Anna Eshoo, and Jared Polis, gets to the root of the issue.